John
Fairley III appeals as a matter of right from a judgment of
the Christian Circuit Court sentencing him to twenty
years' imprisonment for first-degree robbery, receiving
stolen property (firearm), first-degree possession of a
controlled substance (while armed), and possession of
marijuana (while armed). Fairley alleges that the trial court
erred by permitting the victim to make an in-court
identification and by refusing to give an instruction for the
lesser-included offense of facilitation to first-degree
robbery. Fairley also raises two unpreserved errors: 1) that
his conviction for receiving stolen property based on a
stolen handgun was manifestly unjust and 2) that the
Commonwealth's -Attorney improperly questioned him about
a prior assault. For the following reasons, we affirm the
judgment and sentence.

FACTS
AND PROCEDURAL HISTORY

On
September 2, 2014, Charles "Bird Dog" Page left his
home to visit his brother, Earl, in Hopkinsville, Kentucky.
While walking to Earl's residence, Page observed a maroon
colored vehicle, which for some unspecified reason he found
suspicious. Page watched the vehicle pull into a parking lot
and he continued on his way to his brother's home. Upon
reaching Earl's residence, Page realized that he had
forgotten his key. As Page left to meet his brother to get a
key to the house, he once again saw the maroon car.

Concerned
about the maroon car's reappearance, Page hitched a ride
with two African-American men in a blue car. After driving
for some time, the driver turned down an alley. Subsequently,
the passenger in the front seat (later identified by Page as
Fairley) pointed a handgun at Page and commanded "Give
me your money." Page fled the vehicle and ran towards a
law office. Fairley gave chase and struck Page in the back of
the head with his pistol. Page then began to yell for help.

Hearing
the disturbance, Lucius Hawes, exited his law office and saw
both men. Hawes observed an African-American man with
dreadlocks, dressed in dark clothing, and carrying a large
semi-automatic pistol, fleeing the scene headed in the
direction of Clay Street. Subsequently, Hawes provided aid to
Page, whose head wound was bleeding profusely.

Emergency
services were contacted and shortly thereafter an ambulance
arrived to treat Page. While receiving medical treatment,
Page informed Emergency Technician Nicholas Marlow that two
African-American men had assaulted him with a pistol. Page
was initially treated at a local hospital, but was later
medically evacuated by helicopter to a hospital in Tennessee.
Page's injuries included a severe laceration and a broken
nose. Later, when interviewed by the police, Page explained
that the person who struck him had also stolen money from
him.

During
the resulting police investigation, investigators received
tips which suggested Fairley's involvement in the
robbery. Police also learned that at the time of the robbery
Fairley had been wearing a GPS ankle monitor as part of a
court-ordered home incarceration. According to the monitoring
company, Fairley's monitoring device was registered as
being near Hawes's office and moving away from that
location towards Clay Street at the time of the robbery.

The
police interviewed Fairley on September 3, 2014, at which
time he claimed to have been driving a red car on the day of
the robbery. He, noted that he was away from his home that
day as he was submitting an employment application. The
following day, September 4, 2014, police using GPS tracking
located Fairley sitting alone in the back seat of a white
vehicle parked in a vacant lot. On top of the transmission
tunnel in the rear of the vehicle, approximately a foot away
from Fairley, was a firearm which police later learned had
previously been reported stolen. Also in the vacant lot was a
blue Malibu vehicle which was registered to Fairley's
mother.

After
Fairley's arrest[1] he was again interviewed by the police
about the Page robbery. In his second interview, Fairley
initially claimed that he had been at his home during the
time of the robbery. However, later in the interview, he
stated that he had witnessed someone attacking Page and he
gave that person a ride away from the area.

A later
search of the blue Malibu pursuant to a warrant led to the
recovery of quantities of cocaine and marijuana.
Additionally, during a search of Fairley's home, police
recovered a pair of socks which appeared to have blood stains
on them. Subsequent forensic testing established the presence
of blood on the passenger's side door handle of the blue
Malibu, the firearm, and the socks. The DNA profile for those
blood stains was a match for Page at all loci, with an
estimated frequency of one in ninety-nine quintillion based
on the relevant United States population.

In
September 2015, Fairley was tried by the Christian Circuit
Court and found guilty of first-degree robbery, receiving
stolen property (firearm), first-degree possession of a
controlled substance (while armed), and possession of
marijuana (while armed). The jury recommended the maximum
penalty for each offense, but recommended that those
sentences be served concurrently for a total sentence of
twenty years' imprisonment. The trial court sentenced
Fairley in conformance with the jury's recommendation.

I.
The Trial Court Properly Permitted the Victim to Make an
In-Court Identification of Fairley.

Fairley
argues that the trial court erred by permitting Page to make
an in-court identification. Specifically, Fairley contends
that as Page was unable to identify him in a photographic
lineup, that he should have been barred from making an
in-court identification.[2] Alternatively, Fairley requests that
the Court remand this case for a hearing to assess whether
the in-court identification satisfies the factors set forth
in Neil v. Biggers,409 U.S. 188, 93 S.Ct. 375
(1972). We reject both arguments.

After
Fairley was apprehended, Detective Green showed Page a
photographic lineup, but he was unable to identify Fairley as
the perpetrator. However, prior to trial, Page informed the
prosecutor that he would be able to identify Fairley. At a
pretrial conference held in September 2015, the prosecutor
informed the trial court and Fairley of Page's statement.
Fairley, who at that time was functioning as his own counsel,
responded by saying "[t]o me, I feel like that
shouldn't be allowed because if he couldn't do it
then, how all of a sudden you can do it now?" The trial
court explained that it would not bar Page from making an
in-court identification and that Fairley could cross-examine
him on this issue. During the trial, Page identified Fairley
as the man who robbed him. Page explained that he initially
was fearful of identifying Fairley. Further, Page was
concerned that identifying Fairley would lead to the
revelation that the stolen money had been acquired through,
illegal gambling. Notably, Fairley did not object to
Page's in-court identification, but did question him
about the identification as discussed below.

While
Fairley did not object to Page's in-court identification
at trial, we conclude that his objection prior to trial was
sufficient to preserve this issue for appellate review.
Admittedly, this is a close call, but we choose to construe
Fairley's pretrial complaint as an objection to
Page's in-court identification, recognizing that pro
se litigants should be afforded a degree of latitude in
making their arguments. See Commonwealth v. Miller,416 S.W.2d 358, 360 (Ky. 1967) (explaining that pro
se litigants are afforded a different standard than that
applied to those with legal counsel). Accordingly, we review
the trial court's decision to admit evidence under an
abuse of discretion standard. Clark v. Commonwealth,223 S.W.3d 90, 95 (Ky. 2007) (citing Brewer v.
Commonwealth,206 S.W.3d 313, 320 (Ky. 2006)). The test
for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported
by sound legal principles. Goodyear Tire &
Rubber Co. v. Thompson,11 S.W.3d 575, 581 (Ky.
2000) [citing Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999)).

We
reject Fairley's first argument that Page's inability
to identify him in a photographic lineup should bar him from
making an in-court identification. As we have previously
explained "the failure of a witness to identify a
suspect from a photographic line-up does not prevent that
witness from later identifying a suspect in court."
Thompson v. Commonwealth, 2003-SC-0252- MR, 2004 WL
2624165, 6 (Ky. 2004) (citing United States v.
Dobson,512 F.2d 615, 616 (6th Cir. 1975));. United
States v. Briggs,700 F.2d 408, 413 (7th Cir.
1983)).[3] As the United States Court of Appeals for
the Sixth Circuit observed:

The fact that eye witnesses to an occurrence cannot make a
positive identification of an individual from an examination
of photographs of a number of persons, does not necessarily
detract from the validity of their in-court identification
where they see the individual in person. The weight to be
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.